Kung Hei Fat Choy 2020

HKU Legal Scholarship Blog wishes everyone a Happy Chinese New Year 2020.  

Po Jen Yap on Remedial Discretion and Dilemmas in Asia (UTLJ)

"Remedial discretion and dilemmas in Asia"
Po Jen Yap
University of Toronto Law Journal

Nov 2019, Vol 69, Supp 1, pp 84-104

Abstract: Asian courts have mitigated the individual harms and institutional uncertainties associated with the judicial use of delayed remedies by incentivizing the government to comply with the court’s ruling or putting in place judicial safeguards against any legislative delinquency. Expedited remedies like remedial reinterpretation and judicial directives in certain contexts may also be necessary or desirable, even if the judicially imposed result may not be what the enacting legislature had originally intended. Insofar as the legislature can respond and amend these judicial reinterpretation or directives by ordinary legislation, the judiciary does not have the final word and has merely facilitated a constitutional dialogue on rights with the current legislature.

Eric Ip on Constitutional Limits on States of Emergency under Article 18(4) of Hong Kong's Basic Law (Public Law)

"Hong Kong - Constitutional Limits on Emergency Powers amid the 2019 Crisis"

Eric C. Ip

Public Law 

2020, Issue 182 

Abstract: This comment discusses the potential invocation of emergency powers by the Standing Committee of the National People's Congress over the Hong Kong Special Administrative Region pursuant to art.18(4) of the Basic Law to combat civil unrest; examines the constitutional and legal limits regarding their application; and demonstrates that art.18(4) or any other provision of the Basic Law offers no lawful authority to the Standing Committee to suspend the Basic Law itself, or the relevant provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong, or the entire common law system of the Region, even temporarily, during a state of emergency.

Richard Cullen on the Chinese Constitution and Hong Kong's Basic Law (China Daily)

"Chinese Constitution is Fundamental to Hong Kong's Basic Law"
Richard Cullen
China Daily
19 Dec 2019

If you want to comprehend the constitutional order in Hong Kong, almost everyone focuses their attention on the Basic Law. This approach is premised on the valid understanding that the Basic Law is the directly operative constitutional document of the Hong Kong Special Administrative Region. What, though, is the primary source of the constitutional standing of the Basic Law within the HKSAR?

     Hong Kong’s Basic Law is a law of the National People’s Congress (NPC). It was passed in 1990 under the authority conferred on the NPC by Article 31 of the Chinese Constitution (allowing for the creation of special administrative regions within the People’s Republic of China). The Basic Law provides the elemental, regional legal foundations for governing the HKSAR within the PRC under the “one country, two systems” formula. At the most fundamental level, the Basic Law draws its lifeblood from the Chinese Constitution of 1982.

     Some have argued that there is an important difference between what is described as a “liberal constitution” and a “socialist constitution”. The former is treated as the benchmark of what an authentic constitution is, where a supreme law stands apart from and above the state and its government. The latter, meanwhile, may be portrayed as an instrument of the state which is put in place to further the interests of the state, above all... Click here to read the full article.

Pedraza-Fariña and Whalen on A Network Theory of Patentability (U Chicago L Rev)

"A Network Theory of Patentability"
Laura G. Pedraza-Fariña and Ryan Whalen

The University of Chicago Law Review

January 2020, Vol 87.1, pp 63-144

Abstract: Patent law is built upon a fundamental premise: only significant inventions receive patent protection while minor improvements remain in the public domain. This premise is indispensable for maintaining an optimal balance between incentivizing new innovation and providing public access to existing innovation. Despite its importance, the doctrine that performs this gatekeeping role—nonobviousness— has long remained indeterminate and vague. Judicial opinions have struggled to articulate both what makes an invention significant (or nonobvious) and how to measure nonobviousness in specific cases. These difficulties are due in large part to the existence of two clashing theoretical frameworks, cognitive and economic, that have vied for prominence in justifying nonobviousness. Neither framework, however, has generated doctrinal tests that can be easily and consistently applied. This Article draws on a novel approach—network theory—to answer both the conceptual question (what is a nonobvious invention?) and the measurement question (how do we determine nonobviousness in specific cases?). First, it shows that what is missing in current conceptual definitions of nonobviousness is an underlying theory of innovation. It then supplies this missing piece. Building upon insights from network science, we model innovation as a process of search and recombination of existing knowledge. Distant searches that combine disparate or weakly connected portions of social and information networks tend to produce high-impact, new ideas that open novel innovation trajectories. Distant searches also tend to be costly and risky. In contrast, local searches tend to result in incremental innovation that is more routine, less costly, and less risky. From a network theory perspective, then, the goal of nonobviousness should be to reward, and therefore to incentivize, those risky distant searches and recombinations that produce the most socially significant innovations. By emphasizing factors specific to the structure of innovation—namely, the risks and costs of the search and recombination process—a network approach complements and deepens current economic understandings of nonobviousness. Second, based on our network theory of innovation, we develop an empirical, algorithmic measure of patentability—what we term a patent’s “network nonobviousness score” (NNOS). We harness data from US patent records to calculate the distance between the technical knowledge areas recombined in any given invention (or patent), allowing us to assign each patent a specific NNOS. We propose a doctrinal framework that incorporates an invention’s NNOS to nonobviousness determinations both at the examination phase and during patent litigation. Our use of network science to develop a legal algorithm is a methodological innovation in law, with implications for broader debates about computational law. We illustrate how differences in algorithm design can lead to different nonobviousness outcomes, and discuss how to mitigate the negative impact of black box algorithms.  Click here to read the full article.

Claudia Tam (LLB 2019) on Measuring Law Students’ Attitudes Towards and Experiences of Clinical Legal Education at HKU (Int'l J Clinical Legal Ed)

"Measuring Law Students’ Attitudes Towards and Experiences of Clinical Legal Education at The University of Hong Kong"
Claudia Man-yiu Tam (LLB 2019)
International Journal of Clinical Legal Education

2020, Volume 27, Issue 1

Abstract: As law schools in Hong Kong begin to integrate experiential learning into their educational models, clinical legal education (CLE) has symbiotically gained traction as an effective way for students to apply their legal knowledge in a skills-based and client-centered environment. This empirical study is the first of its kind to evaluate the impacts of CLE at The University of Hong Kong (HKU) over the past ten years, by analyzing the survey responses provided by 125 law students regarding their attitudes towards and experiences of CLE. The article traces the birth and development of CLE at HKU, turning first to its theoretical basis to make the case for its importance, and placing emphasis on the ability of CLE’s teaching-service pedagogy to alleviate the public interest law deficit and supplement passive learning as an engaging instructional method in the Hong Kong context. The survey results are then discussed in light of the doctrinal analysis to illustrate that clinic and non-clinic students alike are generally satisfied that HKU’s CLE program has achieved its skills, cognitive, and civic aims, and notably, that clinic students had a statistically significant higher intention to participate in pro bono work after graduation than non-clinic students or students engaged in volunteering.

Weixia Gu on Belt and Road Dispute Resolution: New Development Trends (new article)

“Belt and Road Dispute Resolution: New Development Trends”
in Ying-jeou Ma (ed), Chinese (Taiwan) Yearbook of International Law and Affairs, December 2019, Volume 36, pp. 150-169.
Gu Weixia

Introduction: The Belt and Road Initiative (BRI) was first proposed by President Xi Jinping in 2013 with a view to promoting regional economic and infrastructural cooperation in Asia, Europe and the Middle East. The BRI is a two-faceted cross-border economic strategy, consisting of the "Silk Road Economic Belt" and the 21st Century Maritime Silk Road." It engages the joint effort and participation of sixty-five countries in the world. As outlined by China's National Development and Reform Commission (NDRC) in its report dated March 28, 2015, the BRI has five major goals: enhancing policy coordination, facilitating connectivity, removing trade barriers, facilitating financial integration, and building people-to-people bonds.   With the dual boost to land and maritime trade and business within the Belt and Road Nations, the BRI fosters market integration in the Asian region and forges new economic ties between China and the global economy.

Weixia Gu on Hybrid Dispute Resolution beyond Belt and Road: Towards a New Design of Chinese Arb-Med(-Arb) and Its Global Implications (Wash ILJ)

"Hybrid Dispute Resolution beyond Belt and Road: Towards a New Design of Chinese Arb-Med(-Arb) and Its Global Implications”
Gu Weixia

Washington International Law Journal

December Issue, pp. 117-172

Abstract: Arb-med is a form of hybrid dispute resolution that combines an adjudicative approach (arbitration) with a non-adjudicative approach (mediation). Dispute resolution clauses requiring arb-med will assume a popular role in resolving disputes that arise under China’s Belt and Road Initiative. This article argues that China should regulate arb-med in a way to reconcile local practices (mediation) with international expectations (arbitration) in context of the BRI. As an economic bloc proposed by China, the BRI development has the potential to promote dispute resolution means with Chinese characteristics such as arb-med. Global comparative study of leading arbitration jurisdictions in the East and the West shows a heightened awareness of arb-med due process concerns regarding international enforcement of arb-med awards. Most recent reforms on arb-med by leading Chinese arbitration institutions, such as the CIETAC, BAC and SCIA, evidence a trend toward bifurcating the two processes when facing international clients. China is aware of procedural justice in the hybrid dispute resolution. The establishment of the China International Commercial Court (“CICC”), and its creation of the “One-Stop” Platform shows the need to attract foreign parties, in addition to merely Chinese ones, and the pressure to compete in the BRI dispute resolution market. These are the leading factors that drive Chinese regulators to look beyond sociopolitical imperatives and cultural boundaries in promoting arb-med outside of the Belt and Road. As China is anticipated to propel the BRI arbitration system, Chinese arb-med, and its unique process, will remain a fluid area of localized globalism in contrast with globalized localism in China-led BRI dispute resolution development.

Michael Ng Takes Up Co-editorship of Routledge Law in Asia Book Series

Dr Michael Ng joins Melbourne Law Dean Professor Pip Nicholson and Professor Randall Peerenboom as Series Editors of the Routledge Law in Asia Book Series. The book series welcomes manuscripts in Asian law and comparative Asian law (broadly defined). In addition, the editors of the book series are very keen to attract submissions in interdisciplinary law (including but not limited to law and the humanities, law and history, law and economics, law and politics, empirical/quantitative study of law, law and AI/computing). Should there be any good manuscripts in these areas please feel free to get in touch with Dr Ng at michaeln@hku.hk for more information.

Simon Young on Policing and Prosecution of Money Laundering (new book chapter)

"Policing and prosecution of money laundering"
Simon Young
in V Mitsilegas, S Hufnagel, and A Moiseienko (eds), Research Handbook on Transnational Crime (Edward Elgar 2019) Chapter 10

Introduction: Almost all countries have a criminal offence of money laundering in their law books. This happened in a relatively short time, beginning from the late 1980s with the emergence of international standard setting on money laundering. With the establishment of the Financial Action Task Force (FATF) in 1989 and the conclusion of a series of transnational criminal law treaties (beginning with the 1988 Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances), countries have accepted and implemented obligations to establish an extensive global anti-money laundering (AML) regime in their domestic law.2 Countries have also accepted international scrutiny of their AML regime through mutual evaluation conducted by the FATF and associated regional bodies.3 In their early years, these evaluations assessed only compliance with a set of international standards (commonly known as the FATF’s 40 Recommendations), but more recently, since 2013, they have also involved separate evaluations of the effectiveness of a jurisdiction’s AML regime according to a smaller set of immediate outcomes.4 The first set of evaluation reports done under the new methodology provides rich data for reflection on what has been achieved in the policing and prosecution of money laundering in the 30 years since the articulation of international standards. The reports show that while states are largely compliant technically with relevant standards, their performance in achieving policing and prosecution outcomes is underwhelming. This chapter identifies some of the salient considerations relevant to high and low effectiveness in policing and prosecution outcomes. The chapter begins with a brief discussion of the distinctive features of policing and prosecuting the money laundering offence. It then outlines the FATF’s international standards on money laundering and its method of mutual evaluation, particularly after the extension of the methodology to effectiveness assessments in 2013. The focus in this chapter is on the standards of policing and prosecution of money laundering. In the FATF methodology, three outcome standards are directly relevant: the use of financial intelligence, the enforcement of the money laundering offence, and the confiscation of criminal property. After providing an overview of the results in the 48 jurisdictions reviewed for effectiveness thus far, this chapter looks more closely at the evaluations of three jurisdictions obtaining high effectiveness ratings and three jurisdictions obtaining low ratings. From this analysis, a list of relevant considerations is identified. The chapter concludes with some reflections on the future of FATF mutual evaluations.

Dziedzic and Yam on Amnesties in Hong Kong (CCPL)

HKU’s Centre for Comparative and Public Law has released Amnesties in Hong Kong: Preliminary Discussion Paper. Authors Anna Dziedzic and Julius Yam argue that amnesty – in the form of pardons and/or immunity from prosecution – provide a way to address the ongoing civil conflict in Hong Kong. Amnesties have been used throughout Chinese history, in Hong Kong and all over the world as a way to bring conflicting parties to the negotiating table, cease hostilities, and to promote reconciliation.

     The Discussion Paper outlines the purpose and justifications for amnesty as well as discussing some of the common objections made to amnesty in Hong Kong. It explains how amnesty is not contrary to the rule of law, but rather, properly designed and implemented, amnesty can be consistent with Hong Kong’s existing legal framework and work to support amnesties can support peace, good governance, justice and the rule of law. 

     Global comparative experience offers a range of choices for the design of amnesty. The Discussion Paper suggests some options for design, tailored to meet the current needs of Hong Kong, covering questions such as: Whom should an amnesty cover? What offences should be included (or excluded)? What time period should the amnesty cover? What conditions might be attached to an amnesty? What procedure might be adopted for assessing and granting amnesty? The Discussion Paper also emphasises the importance of the design process: if amnesty is to work to defuse conflict, it is also important that all sides take ownership of the amnesty and work to make it effective and sustainable. 

     By explaining what amnesty is, why it is used, how it fits within Hong Kong law and the kinds of issues to consider in its design, the Discussion Paper provides a basis for informed discussion of the use of amnesty in Hong Kong and its potential to contribute to rebuilding trust and reconciliation. Click here to download the full Discussion Paper (in English) and Chinese translation.

Congratulations to Johannes Chan, Chair Professor

Congratulations to Professor Johannes Chan SC (Hon) on his recent conferral of the title Chair Professor at The University of Hong Kong.  The title is a mark of distinction as the President wrote in his conferment letter to Professor Chan:

"At this University, a Chair Professor title is reserved for world-class scholars of distinction. It signifies due recognition of outstanding academic leadership and excellence. As a top-rated researcher and academic leader, you are held in high regard by your peers globally, and your significant contributions and accomplishments have received international acclaim."

Professor Chan is now only one of two Chair Professors in the Faculty of Law.  He was recently the recipient of the RGC Humanities and Social Sciences Prestigious Fellowship Award and his latest work on the role of the judiciary in Hong Kong was published in Current Legal Problems.  For more information on Professor Chan's research outputs and impact, click here.

Puja Kapai Speaks at the UN Forum on Minority Issues

Puja Kapai joined a panel of experts on the issue of minority language education and its impact on equal access to education and the implementation of SDG4. The Forum was a two-day event held in Geneva at the United Nations on 28 and 29 November 2019. 

     As part of the proceedings chaired by Anastasia Crickley, former Chair of the UN Committee on the Convention for the Elimination of Racial Discrimination and Astrid Thors, former OSCE High Commissioner on National Minorities, Kapai presented on the issue of minority language learning and its impact and implications for women and girls in attaining equal access to quality education in diverse societies. Building on my work on equality issues in education and disparate impact of particular policies on minority groups, Kapai drew on research data to demonstrate the indispensability of an intersectional framework to understand the impact of language education policies on minority women and girls. Kapai highlighted how the use of this analytical framework in understanding and evaluating language policies in the education system brings into view the hidden barriers which disproportionately impact minority girls in terms of their access to education, their drop-out rates and their prospects for academic achievements on par with others. More information is available on the WSRC website. 

Puja Kapai Awarded Women of Influence Award 2019

Conferring WOI Professional of Year Award 2019

Congratulations to Puja Kapai on receiving the American Chamber of Commerce Women of Influence (WoI) Professional of the Year Award 2019! The WoI Conference is one of the most established women’s symposiums in the Asia Pacific region. The theme of the Conference this year was on perseverance, risk-taking, and leadership from outside the confines of the corporate world. In keeping with the theme, the awards conferred accolades on individuals and organisations that "made exceptional achievements" and demonstrated "a steadfast commitment to supporting female leadership in business."

    When presenting the Award, Abbi DeLessio, Co-Chair of the WoI Judging Committee and Senior Consultant at Triangle Associates, said that, “In making their decision, the judges noted Puja’s commitment to going beyond leaning in and dedicating her expertise to pushing boundaries and breaking through traditional barriers. Her journey that continues to inspire many, her students and women in minority communities… her work is so well-aligned with what is happening globally.” DeLessio shared that one judge said, “Puja’s work is gaining traction not only in Hong Kong but she is poised to make a huge difference. Her work is timely, relevant and important and will have a lasting impact.”

      Puja spoke about the value of her work and the award in her acceptance speech:

People within my community sometimes ask me whether my work makes any difference? Were the sacrifices I have made worth it? I think about this, too. As minority women, we often fall through the cracks due to intersectional dimensions of our identity which are inadequately captured by narratives of racism or sexism on their own. But we are more than just the sum of our parts. These experiences unmask how powerful people and powerful systems invisibilise women of colour by glossing over the structural barriers we face and by ignoring our agency and voice. This negative narrative diminishes our agency, constructs us as vulnerable and invites many ‘saviours’ or naysayers who counsel us to stay in our lanes. This Award helps rewrite this script on minority women to enable people like me to be seen as empowered agents for change in our own right, both within and outside our communities. And my hope is for this to encourage and inspire many others out there who dream to make an impact.

 Puja is Convenor of HKU's Women's Studies Research Centre and Associate Professor in HKU Law.

New Issue of Asia-Pacific Journal of Human Rights and the Law (Issue 2, Dec 2019)

   ASIA-PACIFIC JOURNAL ON HUMAN RIGHTS AND THE LAW

Editors-in-Chief: Simon NM Young and Kelley Loper

Publisher: Brill, Leiden

2019, Vol. 20, Issue 2

Table of Contents

The Right to Confidential Communication with Defence Counsel in Japan: Recent Legal Disputes Over Mail Censorship and Photography in Visiting Rooms
By: Teppei Ono
Pages: 159–180
Publication Date: 04 Dec 2019

The Case for Transformative Reparations for Conflict-Related Sexual Violence in Rakhine State at the ASEAN Intergovernmental Commission on Human Rights
By: Samantha Bradley
Pages: 181–226
Publication Date: 04 Dec 2019

Law in Service of Illegal Ousting of the Largest Religious Minority in Bangladesh
By: Vahida Nainar
Pages: 227–244
Publication Date: 04 Dec 2019

Kelvin Kwok on the Meaning of Anticompetitive Object under Article 101 TFEU (Common Law World Review)

"Object and intention under Article 101 TFEU: Lessons from Australia, New Zealand and analytical jurisprudence"
Kelvin Kwok
Common Law World Review
First published on 20 September 2019

Abstract: What does it mean for an agreement to have an anticompetitive ‘object’ under Article 101(1) of the Treaty on the Functioning of the European Union? Can the European Commission support an ‘object’ case by reference to the agreement parties’ subjective intention, and if so, how? What exactly is the relationship between an agreement’s object and the parties’ subjective intention under competition law? This article is the first to bring insights from Australian and New Zealand cases, as well as analytical jurisprudence, to bear on these underexplored yet important questions affecting the European Union and common law jurisdictions around the world. Using Ronald Dworkin’s theory of legal interpretation as the analytical basis, this article argues for a ‘mixed’ conception of the ‘object’ concept which enables an anticompetitive object to be proven either objectively or subjectively. Anticompetitive subjective intention accordingly provides an independent, alternative basis for competition law liability for agreements; the lack of such intention, meanwhile, does not help exculpate parties who are liable based on their objective purpose to restrict competition. This article also argues that voluntariness and evidentiary limits ought to be imposed on the use of anticompetitive subjective intention in the ‘object’ analysis of agreements.

Cora Chan on a Principled Approach to Judicial Deference for Hong Kong (new book chapter)

"A Principled Approach to Judicial Deference for Hong Kong"

Cora Chan

in Guobin Zhu (ed), Deference to the Administration in Judicial Review (Springer 2019) 203-229

First Published Online: 24 November 2019

Abstract: This chapter outlines the approach to deference that Hong Kong courts adopt, evaluates whether such approach is justified, and proposes an approach that should be adopted in light of Hong Kong’s unique constitutional and institutional landscape.